[Federal Register Volume 72, Number 174 (Monday, September 10, 2007)]
[Proposed Rules]
[Pages 51572-51574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17722]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 174 / Monday, September 10, 2007 /
Proposed Rules
[[Page 51572]]
TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Testimony by TVA Employees, Production of Official Records, and
Disclosure of Official Information in Legal Proceedings
AGENCY: Tennessee Valley Authority (TVA).
ACTION: Proposed rule; comment request.
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SUMMARY: The Tennessee Valley Authority (``TVA'') seeks public comment
on a proposed rule that would govern access to TVA information and
records in connection with legal proceedings in which neither the
United States nor TVA is a party. The rule, tracking similar
regulations issued by many other federal agencies, would establish
guidelines for use in determining whether TVA employees will provide
testimony or records relating to their official duties. The rule would
also establish procedures for requesters to follow when making demands
on or requests to a TVA employee for official documents or to provide
testimony. The proposed rule will standardize TVA's past practices,
promote uniformity in decisions, conserve the ability of TVA to conduct
official business, preserve its employee resources, protect
confidential information, provide guidance to requestors, minimize
involvement in matters unrelated to TVA's mission and programs, avoid
wasteful allocation of agency resources, and avoid spending public time
and money for private purpose.
DATES: Comments must be received on or before October 10, 2007.
ADDRESSES: Send or deliver comments to the Office of the General
Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902 by mail or fax at (865) 632-4528. Comments
may also be submitted electronically to npgoschy@tva.gov, with subject
heading ``Comment on Proposed Regulation.''
FOR FURTHER INFORMATION CONTACT: Nicholas P. Goschy, Assistant General
Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902, (865) 632-8960.
SUPPLEMENTARY INFORMATION:
Background
TVA regularly receives subpoenas and other informal requests for
documents and requests for TVA employees to provide testimony or
evidence in cases in which TVA is not a party. Sometimes these
subpoenas or requests are for TVA records that are not available to the
public under the Freedom of Information Act. TVA also receives requests
for TVA employees to appear as witnesses in litigation and to provide
testimony relating to materials contained in TVA's official records or
provide testimony or information acquired during the performance of the
employees' official duties.
Although many other Federal agencies currently have regulations in
place to address these types of requests, and TVA itself has rules
implementing the Freedom of Information Act that govern requests for
information from the general public, TVA currently has no official
regulations governing subpoenas and other information requests for
document production and testimony of TVA employees in legal
proceedings. Issues about such requests that have arisen in recent
years warrant adoption of regulations governing their submission,
evaluation, and processing. Responding to these requests is not only
burdensome, but may also result in a significant disruption of a TVA
employee's work schedule and possibly involve TVA in issues unrelated
to its responsibilities. In order to resolve these issues, many
agencies have issued regulations, similar to the proposed regulation,
governing the circumstances and manner in which an employee may respond
to demands for testimony or for the production of documents.
Establishing uniform procedures for legal processes will ensure timely
notice and promote centralized decision making. The United States
Supreme Court upheld this type of regulation in United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
The proposed rule will formalize those past practices already
utilized by TVA in responding to these types of requests when TVA is a
not a party to the litigation. Briefly summarized, the proposed rule
will prohibit disclosure of official records or testimony by TVA's
employees, as defined in Sec. 1301.52, unless there is compliance with
the rule. The proposed rule sets out the information that requesters
must provide and the factors that TVA will consider in making
determinations in response to requests for testimony or the production
of documents. The proposed rule sets forth TVA's standard practice of
providing employee testimony by affidavit only and clarifies those
steps requesters must follow in order to obtain official TVA documents,
including how to accomplish service of process on TVA. The rule
establishes a new practice that service can now be accomplished by
United States mail.
This rule applies to a range of matters in any legal proceeding in
which TVA is not a named party. Current and former TVA employees will
not provide testimony about specific matters involving information
which they acquired during the performance of their official duties
unless permitted to testify as provided in the rule. They would not be
restricted from providing testimony on their own time about general
matters unconnected with the specific TVA matters.
This rule will ensure a more efficient use of TVA's resources,
minimize the possibility of involving TVA in issues unrelated to its
responsibilities, promote uniformity in responding to such subpoenas
and like requests, and maintain the impartiality of TVA in matters that
are in dispute between other parties. It will also serve TVA's interest
in protecting sensitive, confidential, and privileged information and
records that are generated in fulfillment of TVA's statutory
responsibilities.
This rule is internal and procedural rather than substantive. It
does not create a right to obtain official records or the official
testimony of a TVA employee nor does it create any additional right or
privilege not already available to TVA to deny any demand or request
for testimony or documents. Failure to comply with the procedures set
out in these regulations would be a basis for denying a demand or
request submitted to TVA.
[[Page 51573]]
List of Subjects in 18 CFR Part 1301
Administrative practice and procedure.
For the reasons stated in the preamble, TVA proposes to amend 18
CFR Chapter XIII, to read as follows:
PART 1301--PROCEDURES
1. The authority citation for part 1301 continues to read as
follows:
Authority: 16 U.S.C. 831-831ee, 5 U.S.C. 552.
2. Part 1301 is amended by adding subpart D to read as follows:
Subpart D--Testimony by TVA Employees, Production of Official Records,
and Disclosure of Official Information in Legal Proceedings
Sec.
1301.51 Purpose and scope.
1301.52 Definitions.
1301.53 General.
1301.54 Requirements for a demand for records or testimony.
1301.55 Responding to demands.
1301.56 Final determination.
1301.57 Waiver.
Subpart D--Testimony by TVA Employees, Production of Official
Records, and Disclosure of Official Information in Legal
Proceedings
Sec. 1301.51 Purpose and scope.
(a) Purpose. This part sets forth the procedures to be followed
when TVA or a TVA employee is served with a demand to provide testimony
and/or produce or disclose official information or records in a legal
proceeding in which TVA or the United States is not a party, and where
such appearance arises out of, or is related to, the individual's
employment with TVA.
(b) Scope. This part applies when, in a judicial, administrative,
legislative, or other legal proceeding, a TVA employee is served with a
demand to provide testimony concerning information acquired in the
course of performing official duties or because of official status and/
or to produce official information and/or records.
Sec. 1301.52 Definitions.
The following definitions apply to this part:
(a) Appearance means testimony or production of documents or other
material, including an affidavit, deposition, interrogatory,
declaration, or other required written submission.
(b) Demand means a subpoena, order, or other demand of a court of
competent jurisdiction, or other specific authority (e.g. an
administrative or State legislative body), for the production,
disclosure, or release of TVA records or information or for the
appearance of TVA personnel as witnesses in their official capacities.
(c) Employee means any members of the Board of Directors,
officials, officers, directors, employees or agents of TVA, except as
TVA may otherwise determine in a particular case, and includes former
TVA employees to the extent that the information sought was acquired in
the performance of official duties for TVA.
(d) General Counsel means the General Counsel of TVA or a person to
whom the General Counsel has delegated authority under this part.
(e) Legal proceeding means any and all pre-trial, trial, and post-
trial stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, or other judicial or quasi-judicial bodies or tribunals,
whether criminal, civil, or administrative in nature.
(f) Records or official records and information means all
information in the custody and control of TVA, relating to information
in the custody and control of TVA, or acquired by a TVA employee in
performance of his or her official duties or because of his or her
official status while the individual was employed by TVA.
(g) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Sec. 1301.53 General.
(a) No employee shall appear, in response to a demand for official
records or information, in any proceeding to which this part applies to
provide testimony and/or produce records or other official information
without prior authorization as set forth in this part.
(b) This part is intended only to provide procedures for responding
to demands for testimony or production of records or other official
information, and is not intended to, does not, and may not be relied
upon to, create any right or benefit, substantive or procedural,
enforceable by any party against TVA and the United States.
Sec. 1301.54 Requirements for a demand for records or testimony.
(a) Service of demands. Only TVA's General Counsel or his/her
designee is authorized to receive and accept demands sought to be
served upon TVA or its employees. All such documents should be
delivered in person or by United States mail to the Office of the
General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902.
(b) Time limit for serving demands. The demand must be served at
least 30 days prior to the scheduled date of testimony or disclosure of
records, in order to ensure that the General Counsel has adequate time
to consider the demand and prepare a response, except in cases of
routine requests for personnel and payroll records located on-site in
Knoxville, where service 15 days prior will normally be considered
sufficient. The General Counsel may, upon request and for good cause
shown, waive the requirement of this paragraph.
(c) Form of Demand. A demand for testimony or production of records
or other official information must comply with the following
requirements:
(1) The demand must be in writing and submitted to the General
Counsel.
(2) The demand must include the following information:
(i) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved.
(ii) If production or records or other official information is
sought, a list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the records
sought.
(iii) If testimony is sought, a description of the intended use of
the testimony, a detailed description of how the testimony sought is
relevant to the issues in the legal proceeding, and a specific
description of the substance of the testimony sought.
(iv) A statement as to how the need for the information outweighs
any need to maintain the confidentiality of the information and
outweighs the burden on TVA to produce the documents or testimony.
(v) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than a TVA employee, such as a retained
expert.
(vi) The name, address, and telephone number of counsel to each
party in the case.
(d) TVA reserves the right to require additional information to
complete the request where appropriate or to waive any of the
requirements of this section at its sole discretion.
Sec. 1301.55 Responding to demands.
Generally, authorization to provide the requested material or
testimony shall not be withheld unless their disclosure is prohibited
by law or for
[[Page 51574]]
other compelling reasons, provided the request is reasonable and in
compliance with the requirements of this part, and subject to the
following conditions:
(a) Demands for testimony. TVA's practice is to provide requested
testimony of TVA employees by affidavit only. TVA will provide
affidavit testimony in response to demands for such testimony, provided
all requirements of this part are met and there is no compelling factor
under paragraph (c) of this section that requires the testimony to be
withheld. The General Counsel may waive this restriction when
necessary.
(b) Demands for production of records or official information.
TVA's practice is to provide requested records or official information,
provided all requirements of this part are met and there is no
compelling factor under paragraph (c) of this section that requires the
records or official information to be withheld.
(c) Factors to be considered in determining whether requested
testimony or records or official information must be withheld. The
General Counsel shall consider the following factors, among others, in
deciding whether requested testimony or materials must be withheld:
(1) Whether production is appropriate in light of any relevant
privilege;
(2) Whether production is appropriate under the applicable rules of
discovery or the procedures governing the case or matter in which the
demand arose;
(3) Whether the material requested is relevant to the matter at
issue;
(4) Whether allowing such testimony or production of records would
be necessary to prevent a miscarriage of justice;
(5) Whether disclosure would violate a statute, Executive Order, or
regulation, including, but not limited to, the Privacy Act of 1974, as
amended, 5 U.S.C. 552a;
(6) Whether disclosure would impede or interfere with an ongoing
law enforcement investigation or proceeding, or compromise
constitutional rights or national security interests;
(7) Whether disclosure would improperly reveal trade secrets or
proprietary confidential information without the owner's consent;
(8) Whether disclosure would unduly interfere with the orderly
conduct of TVA's functions;
(9) Whether the records or testimony can be obtained from other
sources;
(10) Whether disclosure would result in TVA appearing to favor one
litigant over another;
(11) Whether the demand or request is within the authority of the
party making it; and
(12) Whether a substantial Government interest is implicated.
(d) Restrictions on testimony or production of records or official
information. When necessary or appropriate, the General Counsel may
impose restrictions or conditions on the production of testimony or
records or official information. These restrictions may include, but
are not limited to:
(1) Limiting the area of testimony;
(2) Requiring that the requester and other parties to the legal
proceeding agree to keep the testimony under seal;
(3) Requiring that the testimony be used or made available only in
the legal proceeding for which it was requested;
(4) Requiring that the parties to the legal proceeding obtain a
protective order or execute a confidentiality agreement to limit access
and any further disclosure of produced records or official information.
(e) Fees for Production. Fees will be charged for production of TVA
records and information. The fees will be the same as those charged by
TVA pursuant to its Freedom of Information Act regulations, 16 CFR.
1301.10.
Sec. 1301.56 Final determination.
The General Counsel makes the final determination whether a demand
for testimony or production of records or official testimony in a legal
proceeding in which TVA is not a party shall be granted. All final
determinations are within the sole discretion of the General Counsel.
The General Counsel will notify the requesting party and, when
necessary, the court or other authority of the final determination, the
reasons for the grant or denial of the request, and any conditions that
the General Counsel may impose on the production of testimony or
records or official information.
Sec. 1301.57 Waiver.
The General Counsel may grant a waiver of any procedure described
by this part where a waiver is considered necessary to promote a
significant interest of TVA or the United States, or for other good
cause.
Maureen H. Dunn,
General Counsel.
[FR Doc. E7-17722 Filed 9-7-07; 8:45 am]
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